CLLB: Criminal Justice Abstracts. November 16-20, 2009.

The Supreme Court will hear appeals from two juvenile offenders serving sentences of life without the possibility of parole. Outside of the consideration of the death penalty, the Supreme court has generally allowed what punishment fit what crimes. However, the court had barred the execution of juvenile offenders in 2005, reasoning that people under 18 are immature, irresponsible, susceptible to peer pressure and often capable of change.

A ruling changing this “could be the Brown v. Board of Education of juvenile law,” said Paolo G. Annino, the director of the Children’s Advocacy Clinic and Florida State University.
The Supreme Court is divided when life sentences without the possibility of parole is needed.
Republican chairman of the State House’s Criminal and Civil Justice Policy Council William D. Snyder said, “I think it would be wrong for the Supreme Court to say that it was patently illegal or improper to send a youthful offender to life without parole. At a certain point, juveniles cross the line, and they have to be treated as adults and punished as adults.” John R. Blue, a retired Florida appeals court judges, believes, “To lock up forever seems a little barbaric to me.” “You ought to leave them some hope.”

Of the just over 100 people worldwide serving life sentences without the possibility of parole for crimes committed as juveniles in which no one was killed, 77 are in Florida. Several factors are considered in explaining this disproportionate ratio.

In the early 1990’s, Florida violent juvenile crime rate was abnormally high. Florida state attorney general Bill McCollum explains that the “problem was particularly dire . . . and threatening the state’s bedrock tourism industry.” The state responded by trying more juveniles in adult courts, increasing sentences and eliminating parole for capital crimes. “It was a hysterical reaction,” said Thomas K. Peterson, a semi-retired Miami judge. “People still go around saying things have never been worse, but violent juvenile crime has gone down even as the juvenile population has grown,”

The state’s brief indicates that juvenile crime has fell 30 percent in the decade ending in 2004.
Former state prosecutor Shay Bilchik served in Miami from 1977 – 1993. “We were pretty aggressive in those years in transferring kids into criminal court,” said Bilchik, now director of the Center for Juvenile Justice Reform in Georgetown. “My biggest regret is . . . we were under the false impression that we were insuring greater public safety when we were not.”
The two juvenile appeal hearings were brought by Joe Sullivan and Terrance Graham. Mr. Sullivan raped a 72-year old woman after burglary in 1989 at age 13. Mr. Graham committed armed burglary at 16 and was sentenced to a year in jail and three year probation in 2003. He was later sentenced to life in prison in 2005 for violation probation by committing a home invasion and age 17.

In March, Senator Jim Webb of Virginia introduced a bill calling for an overhaul of the criminal justice system. Calling the situation a “national disgrace,” Webb called system is too large, and said it was plagued by wrongful incarcerations, poor rehabilitative treatment and mental health car at a price of $44 billion a year on prisons alone.

The Drug Policy Alliance has advocated for the liberalization of United States’ drug law, especially the legalization, regulation, and taxation of marijuana and ending criminal penalties on possession and use of all other drugs. Ethan Nadelmann, executive director, has said the recently “There’s a tremendous amount of momentum across the board.” California is considering a bill to legalize and tax marijuana; Massachusetts voted to decriminalize small amounts of marijuana; and the attorney general of Arizona has said that legal marijuana might be an answer to the Mexican drug cartel violence occurring in his state.

Webb’s bill has 34 Senate co-sponsors, including Republicans Lindsey Graham and Olympia Snowe, and has drawn support from justice advocacy groups.

This bill would create bi-partisan, blue-ribbon commissions to recommend reforming the criminal justice system as a whole, and not just legalize drug or even focus on drug policy. The bill would simply call for its review.

According to Webb spokesperson Jessica Smith, “We can’t have a debate about our criminal justice system if we just ignore the drug part of it. States across the county – their budgets are being completely eaten up by incarceration . . . Is it effective? Is it cost effective? Are we doing the right thing here when we lock people up?”

Portugal

Last year, Glenn Greenwald, best known for his liberal positions on civil liberty, torture, and the Bush administration, reported for the libertarian-leaning Cato Institute on the Portuguese decriminalization of drugs. The result was a strongly positive 30-page report published by Cato in April. (http://www.cato.org/pubs/wtpapers/greenwald_whitepaper.pdf) According to Greenwald, “In the 1990s they probably had the single worst problem with drug abuse and related pathologies of any country in Europe. Crime was through the roof . . . The more they criminalized the worse it got.”

Portugal passed a bill very similar to one Senator Jim Webb has proposed, creating a non-partisan commission of experts to make recommendations on alleviating the drug problem. The difference here is that Portugal focused specifically on drugs. The result was complete drug decriminalization. Using and possessing drugs in Portugal is illegal, but carries no criminal penalty. Drug trafficking and providing drugs to a minor are still criminal offenses. Since decriminalization, lifetime prevalence rates have decreased for most age groups, with 20-24 year olds as an exception.

The Opposition
Calvina Fay, executive director of the Drug Free American Foundation, calls evidence from Portugal’s decriminalization of drugs in misleading. Fay claims that rates of drugs use over the past 40 years have fallen further in the United States than in Portugal. She also claims that if that if US government decriminalizes drugs, they might send the wrong message to children.

Joseph Califano, head of the National Center on Addiction and Substance Abuse at Columbia University, has said that that the War on Drugs in America has failed mainly because it hasn’t focused on keeping children away from drugs before they become users. “I think just opening the door and legalizing drugs is just going to create more drug use.”

In the Netherlands, with known liberal drug policies, the rate of marijuana use has risen and fallen pretty much in tandem with the rest of Europe, a rate which is lower than that in the US. According to Nadelmann, “fluctuations in the rate of drug use by and large have no correlation to how harsh the drug policies are.”

With tight budgets, public policy must choose between aggressive enforcement and harm reduction approaches.

“The tougher we get with regard to marijuana prosecution … the softer we get with the prosecution of everything else,” said retired Orange County, California judge Jim Gray in testimony on the California legalization bill. “We simply have so many resources and if we’re spending them in prosecutions of marijuana, we are not spending them for prosecutions of rape, homicide et cetera.”

Where are We Now
Greenwald has said, “If you’re the first state to do it, there’s really no way you can point to evidence of what will or will not happen. … It’s just theory and it’s very abstract,” he said.

According to Webb spokesperson Jessica Smith, Webb is “not doing this for political reasons. There’s definitely a risk involved,” she said. “He knows that there are gambles.”